CHAPTER TEN.
Si quis mutuo ceperit aliquid a Judeis, plus vel minus, et moriatur antequam illud solvatur, debitum non usuret quamdiu heres fuerit infra etatem, de quocumque teneat; et si debitum illud inciderit in manus nostras, nos non capiemus nisi catallum contentum in carta.
If one who has borrowed from the Jews any sum, great or small, die before that loan be repaid, the debt shall not bear interest while the heir is under age, of whomsoever he may hold;[[444]] and if the debt fall into our hands, we will not take anything except the principal sum[[445]] contained in the bond.
The taking of usury, denied by law to Christians, was carried on by Jews under great disadvantages and risks; and the rates of interest were proportionately high, ranging in normal cases from two to four pence per pound per week; that is, from 43⅓ to 86⅔ per cent. per annum.[[446]] During his nonage a ward had nothing wherewith to discharge either principal or interest, since he who had the wardship drew the revenue. At the end of a long minority an heir would have found the richest estates swallowed up by a debt which had increased automatically ten or twenty-fold.[[447]]
Magna Carta prevented this great injustice to the ward; but, in doing so, inflicted, according to modern standards, some injustice on the money-lenders. During the minority no interest at all, it was provided, should accrue to Jew or other usurer; while, if the debt passed to the Crown, the king must not use his prerogative to extort more than a private debtor might; he must confine himself to the principal sum specified in the document of debt. The provision that no interest should run during minorities was confirmed by the Statute of Merton,[[448]] which made it clear, however, that its provisions should not operate as a discharge of the principal sum or of the interest which had accrued before the ancestor’s death. The Statute of Jewry, of uncertain date,[[449]] made interest irrecoverable by legal process. All previous acts against usury were repealed by the statute 37 Henry VIII. c. 9, which, however, forbade the exaction of interest at a higher rate than 10 per cent., and this remained the legal rate until reduced to 8 per cent, by 21 James I. c. 17. Money-lending and the usury laws are subjects closely bound up with the repressive measures against the Jews.
I. The History of the Jews in England. The policy of the Crown towards those aliens of the Hebrew race who sought its protection varied at different times, and three periods may be distinguished. From the Norman Conquest to the coronation of Richard I. the Jews were fleeced and tolerated; during the reigns of Richard and John and the minority of Henry III. they were fleeced and protected; and finally they were fleeced and persecuted, this last stage extending from the formation of the alliance between Henry and Innocent IV. down to the ordinance of 1290, which banished in perpetuity all Jews from England. The details of this long story of hardship and oppression, tempered fitfully by royal clemency, which had always to be well paid for, can here be glanced at only in the barest outline. There were Jews in England before the Norman Conquest; but the first great influx came in the reign of Rufus, whose financial genius recognized in them an instrument for his gain, and who would the more gladly protect them, as likely to prove a thorn in the side of his enemy the Church. A second influx resulted from the persecution of Israelites on the Continent of Europe, consequent on the failure of the first Crusade. This new alien immigration seems to have excited mistrust in England, and led to the disarming of all Jews in 1181, a measure which left them at the mercy of the Christian rabble.
Accordingly, when a disturbance occurred at the coronation of Richard I., on 3rd September, 1189, owing to the imprudence of some officious Jews, a general massacre took place in London, while York and other towns were not slow to follow the example. The king was moved to anger, not so much by the sufferings of the Jews, as by the destruction of their bonds, since that indirectly injured the Crown; for the more the Jews had, the more could be extorted from them, and when the written bond had been burned, no evidence of the debt remained. Richard, returning from his captivity a few years later, in urgent need of money, determined to prevent a repetition of such interference with a valuable source of revenue. His motive was selfish, but that was no reason why the Israelites should not pay for a measure designed for their own protection. Assembled at Nottingham they granted a liberal aid, in return for a new expedient devised to secure their bonds. This scheme, for the details of which Richard was probably indebted to the genius of his great justiciar, archbishop Hubert Walter, was of a comprehensive and practical character. In London, York, and other important cities, offices or bureaus were established under the Crown’s protection, containing treasure chests, called archae, fitted with triple locks, to be opened only at stated intervals in the presence of special custodians, known as chirographers, who kept the keys. These custodians were usually four in number, two Christians and two Jews, chosen by juries specially summoned for that purpose by the sheriff of the county, and they were obliged to find sureties that they would faithfully perform their important functions. Only in their presence could loans be validly contracted between Jews and Christians; and it was their duty to see the terms of all such bargains reduced to writing in a regular prescribed form in duplicate copies. No contract was binding unless a written copy or chirograph had been preserved in one or other of those repositories or arks, which thus served every purpose of a modern register, and other purposes as well. If the money-lender suffered violence and was robbed of his copy of the bond, the debtor was still held to his obligations by the duplicate which remained. If the Jew and all his relatives were slain, even then the debtor did not escape, but was confronted by a new and more powerful creditor, the king himself, armed with the chirograph. Lists of all transactions were preserved, and all acquittances and assignments of debts, known from their Hebrew name as “starrs,” had also to be carefully enrolled.[[450]] Minute and stringent rules, codified by Hubert Walter in the terms of a written commission, were issued to the judges when starting on their circuit in September, 1194.[[451]]
If this cunningly-devised system prevented the Christian debtor from evading his obligations, it also placed the Jewish creditor completely at the mercy of the Crown; for the exact wealth of every Jew could be accurately ascertained from a scrutiny of the contents of the archae. The king’s officials were enabled to judge to a penny how much it was possible to wring from the coffers of the Jews, whose bonds, moreover, could be conveniently attached until they paid the tallage demanded. The custom of fixing on royal castles as the places for keeping these arks, probably explains the origin of the special jurisdiction exercised over the Jews by the king’s constables (“qui turres nostras custodierunt”).[[452]] In the dungeons of their strongholds horrible engines were at hand for enforcing obedience to their awards. Such jurisdiction, however, extended legitimately over trivial debts only.[[453]] All important pleas were reserved for the officials of the exchequer of the Jews, a special government department, which controlled and regulated the whole procedure. Evidences of the existence of this separate exchequer have been traced back to 1198, although no record has been found of a date prior to 1218.[[454]] John, while despising the Jews, was not slow to realize that in them the Crown possessed an asset of great value. It was his policy to protect their wealth as a reservoir from which he might draw in time of need, contenting himself meanwhile with comparatively moderate sums. Thus, by a charter dated 10th April, 1201, he took 4000 marks in return for confirming their privileges; and he obtained a second payment of a similar amount after his rupture with Rome. The charter of 1201 was only a confirmation of rights already enjoyed by all English Jews in virtue of the liberal interpretation put upon the terms of an earlier charter which had been granted by Henry I. to a particular father in Israel with his household, but subsequently extended, with the tacit concurrence of the Crown, to the whole Hebrew race. Under John’s charter they enjoyed valuable and definite privileges, which, while leaving them completely in the royal power, exempted them from all jurisdictions except those of the king and his castellans; while, if a Christian brought a complaint against a Jew, it was to be judged by the peers of that Jew.[[455]]
When a repetition of the massacre which had disgraced his brother’s coronation threatened to take place in 1203, John promptly ordered the mayor and barons of London to suppress all such attempts. In terms contemptuous alike to the Londoners and to the Jews his writ declared that his promise of protection, “even though granted to a dog,” must be held inviolate.[[456]] Protection was accorded to them, however, only that they might furnish a richer booty to the Crown, when the proper occasion arrived. Suddenly John issued orders for a wholesale arrest of the Jews throughout England. The most wealthy members of their community were brought together at Bristol, and, on 1st November, 1210, were compelled to give a reluctant consent to a general tallage at the enormous sum of 66,000 marks. Apparently this amount had been fixed as the result of an exaggerated estimate of the contents of the archae, and was more than they could afford to pay. The methods adopted by John’s castellans to extort the arrears of the amount are well-known, especially in the case of the unfortunate Jew of Bristol, from whom seven teeth were extracted, one each day, until he consented to pay the sum demanded.[[457]]
It was doubly hard that the race thus plundered and tortured by the king should be subjected to harsh treatment by the king’s enemies on the ground that they were pampered protégés of the Crown. Yet such was the case: on Sunday, 17th May, 1215, when the insurgents on their way to Runnymede entered London, they robbed and murdered the Jews, using the stones of their houses to fortify the city walls.[[458]] It is not to be wondered then that the same insurgents in forcing on King John the demands which formed the basis of Magna Carta, included provisions against usury.
The advisers of the young Henry in 1216 omitted these clauses, but not from love of the Jews. They were unwilling to impair so useful a financial resource, which has been compared to a sponge which slowly absorbed the wealth of the nation to be quickly squeezed dry again by the king. The Jews were always willing to disgorge a portion of their gains in return for protection in the rest, even of a contemptuous and intermittent kind; but their lot became hard indeed when Henry III., urged by popular clamour and the wishes of the Pope, began a course of active persecution, without relaxing the rigour of those royal exactions which had previously been the price of protection. In 1253, a severe ordinance inflicted a long list of vexatious regulations on the Hebrews, almost converting their quarters in each great city into ghettos, like those of the Continent of Europe. This was merely the commencement of a series of oppressive measures, the natural outcome of the growing hatred with which Christians regarded Jews,—a result partly of the heated imagination of the rabble, ready to believe unauthenticated stories of the crucifixion of Christian children, and partly of the fact that rich Jews, in spite of all persecution, had possessed themselves of the landed estates of freeholders and nobles and claimed to act as lords of Christian tenants, enjoying wardships, escheats, and advowsons, as any Christian baron might have done. The scope of this enquiry excludes any detailed account of the stages through which repressive legislation passed, until the lot of the Jews in England became intolerable. The Statute of Jewry, however,[[459]] was of exceptional importance; taking from usurers the right to recover interest by legal process, and limiting execution for the principal to one half of the debtor’s lands and chattels. In return some temporary concessions were granted. One by one, all these privileges were withdrawn, until the end came in 1290 with the issue of a decree of perpetual banishment by Edward I., who was compelled to sacrifice the cherished right of keeping a royal preserve of Jews in deference to the culmination of national prejudice in a storm of unreasoning hate.
II. Legal Position of the Jews. All through these vicissitudes of fortune the legal status of the Jews had remained unchanged in all essentials. Their position was doubly hard; they were plundered by the Crown and persecuted by the populace. If John saved them from being robbed by his Christian subjects, it was that they might be better worth the robbing by a Christian king. Yet, for this protection, at once fitful and interested, the Jews had to pay a heavy price; not only were they liable to be tallaged arbitrarily at the king’s will, without limit and without appeal, but they were hated by rich and poor as the king’s allies. Such feelings would of themselves account for the unsympathetic treatment accorded to money-lenders by Magna Carta; two other reasons contributed. All usury was looked on in the Middle Ages as immoral (although illegal only for Christians), while excessive interest was habitually exacted.
The feudal scheme of society had no place for Jews and afforded them no protection. Not only did they share the disabilities common to all aliens, but these were not in their case mitigated by the protection extended to other foreigners by their own sovereigns and by the Church. As exiles in a foreign land, exposed to the attacks of a hostile mob, they were forced to rely absolutely on the only power strong enough to protect them, the arm of the king. The Jews became the mere serfs, the perquisites or chattels of the Crown, in much the same way as the villeins became the serfs or chattels of their lords. Rights they might have against others by royal sufferance, but they had no legal remedy against their master. In the words of Bracton,[[460]] “the Jew could have nothing of his own, for whatever he acquired, he acquired not for himself but for the king.” His property was his merely by royal courtesy, not under protection of the law. When he died, his relations had no legal title to succeed to his mortgages, goods, or money; the exchequer, fortified by an intimate knowledge of the extent of his wealth (for that consisted chiefly in registered bonds), stepped into possession and could do what it pleased. The king usually, indeed, in practice contented himself with one-third of the whole; but if the relations of the deceased Jew received less than the balance of two-thirds, they would be well advised to offer no remonstrance. The Crown did not admit a legal obligation; and there was no one either powerful enough, or interested enough, to compel the fulfilment of the tacit understanding which restricted the royal claims. Whatever the Jew had amassed belonged legally and potentially not to him but to the Crown. Magna Carta, in striking at money-lenders, was striking at the king.
[444]. The words “de quocumque teneat” include both Crown tenants and under-tenants, and suggest that only freeholders were to receive protection from this clause.
[445]. Catallum and lucrum were the technical words used for “principal” and “interest” respectively in bonds and other formal documents. See, e.g. Round, Ancient Charters (Pipe Roll Society, Vol. X.) No. 51, and John’s Charter to the Jews, Rot. Chart., p. 93.
[446]. See Pollock and Maitland, I. 452, and Round’s Ancient Charters, notes to Charter No. 51.
[447]. The Crown was sometimes called in to enable a creditor, overwhelmed by the accumulation of interest, to come to a settlement with his creditors. In 1199 Geoffrey de Neville gave a palfrey to the king to have his aid “in making a moderate fine with those Jews to whom he was indebted.” See Rotuli de Finibus, p. 40. Ought we to view John’s intervention as an attempt to arrange a reasonable composition with unreasonable usurers, or was it simply a conspiracy to cheat Geoffrey’s creditors?
[448]. 20 Henry III. c. 5.
[449]. Statutes of Realm, I. 221.
[450]. Cf. J. M. Rigg, Sel. Pleas of the Jewish Exchequer, p. xix.
[451]. See chapter 24 of the Forma procedendi in placitis coronae regis, cited in Sel. Charters, 262.
[452]. See John’s Charter to the Jews of 10th April, 1201, in Rotuli Chartarum, p. 93.
[453]. See Pollock and Maitland, I. 453, n.
[454]. Rigg, ibid., xx.
[455]. “Judicata sit per pares Judei.” See Rot. Chart., I. 93.
[456]. Rot. Pat., I. p. 33, and New Rymer, I. 89. The date is 29th July, 1203.
[457]. See Rigg, Sel. Pleas of the Jewish Exchequer, xxiv.
[458]. See Miss Morgate, John Lackland, p. 230.
[459]. Statutes of Realm, I. 221.
[460]. Folio, 386b.